Current Events | International Humanitarian Law Amid Russia’s Invasion of Ukraine

On the morning of February 24, Russian forces invaded Ukraine ending diplomatic efforts to resolve post-Cold War disagreements between NATO (North Atlantic Treaty Organization) members and Russia, the superpower built from the remnants of the USSR (Union of Soviet Socialist Republics). [1] The Office of the United Nations High Commissioner for Human Rights (OHCHR) has confirmed 925 casualties as of March 17 and proposed that the real number could be higher. [2] The conflict has prompted a massive refugee crisis in Europe, with nearly 3.4 million people having fled the war, over 2 million of whom have taken shelter in Poland. [3] This has prompted the Council of the European Union to implement a temporary protection for refugees and asylum seekers fleeing from the war by augmenting “[residence rights], access to the labour market and housing, medical assistance, and access to education for children.” [4] The World Economic Forum estimates that 16 million people will be in need of humanitarian assistance as a result of the conflict, [5] and the UN Security Council has repeatedly raised concerns about the blockage of emergency relief channels that would lead to a worsening of the humanitarian crisis. [6] Amid the rapidly increasing number of military and civilian casualties, families’ time-sensitive need for humanitarian assistance, and the destruction of crucial infrastructure and health services, the relevance of international humanitarian law as well as its protection and punishments are of timely importance. 

To fully grasp the scope of Russia’s violations, it is necessary to review the basic elements of international humanitarian law in the context of the armed conflict, including its protection for civilians and accountability mechanisms for violations of international humanitarian law. Russia’s invasion of Ukraine is subject to international humanitarian law (IHL), or laws of armed conflict. As outlined by the European Commission, IHL defines “the rapid and unimpeded passage of humanitarian aid in armed conflict, the freedom of movement of humanitarian workers, the protection of civilians (including medical and humanitarian workers), the protection of refugees, prisoners, the wounded and sick,” among others. [7] Regardless of the actor that initiated armed fighting, IHL applies to both sides involved in the conflict; in the context of the Russian-Ukrainian crisis, all states involved in the armed conflict are subject to proceed with compliance to these laws.

International humanitarian law is built upon the foundation of the 1949 Fourth Geneva Convention and the 1977 and 2005 Additional Protocols. It is effectively an international legal framework established to better ensure humanitarian provisions and civilian protection in armed conflict. 

The 1949 Geneva Convention extended and revised the gatherings of the 1929 Diplomatic Conference and 1934 Tokyo Draft, and drew from the shortcomings of prevention measures in World War II. It ushered in a new precedent for civilian humanitarian protection in armed conflict, whereas previously, protections for combatants were the predominant focus of armed conflict agreements. The civilian focus of IHL adds to why Russia’s airstrikes on civilian targets, including hospitals, is of particular concern, from a legal standpoint. Among the 159 articles of the Fourth Geneva Convention are Articles 13, 32, and 79 to 135, which protect civilians from murder, torture, brutality, discrimination, deportation, and internment; and Article 14, which establishes hospitals and safety zones for the injured and vulnerable communities. [8] The attack on a maternity hospital and targeting of the residential city of Mariupol in March has raised further concerns about the explicit targeting of civilians, and the destruction of infrastructure has raised alarms about the accessibility of humanitarian aid in Ukraine. [9] Additional protocols to the 1949 Geneva Conventions include further safeguards for the humane treatment of women, children, journalists, humanitarian assistance workers, and civilian populations.

Breaches of IHL are attributed to both states and individuals, and grave violations, or war crimes, can implicate the prosecution and sanctioning of either. [10] The definitions of a war crime, though varied, include “Grave breaches of the 1949 Geneva Conventions, related to international armed conflict” and “Other serious violations of the laws and customs applicable in international armed conflict.” [11] In response to the growing number of civilian casualties in Ukraine, the OHCHR issued a reminder to Russia that “directing attacks against civilians and civilian objects, as well as so-called bombardment in towns and villages [...] are prohibited under international law and may amount to war crimes.” [12] Article 8 of the Rome Statute of the International Criminal Court (ICC) established the ICC’s jurisdiction with regard to bringing perpetrators of war crimes to justice. Both Russia and Ukraine are signatories of the 1949 Geneva Conventions, but many rules codified in IHL are nonetheless binding to all parties involved since these agreements have been accepted into international customary law. [13] It should be noted that IHL and human rights law are distinct, with the former applying in armed conflict and the latter applying during both peace and armed conflict. [14]

International accountability for states and individuals after an IHL violation has occurred comes from several sources. While the International Court of Justice, which is the principal judicial body of the United Nations, oversees alleged violations of international human rights law and disputes between states, the International Criminal Court, the establishment of which was recounted in the previous paragraph, has jurisdiction over war crimes, genocide, and crimes against humanity, which fall under IHL violations. In addition to these international courts, tribunal courts have been established to deal with specific conflicts. For example, the International Criminal Tribunal for the former Yugoslavia had its jurisdiction over the 1990s violations of IHL during the Yugoslav Wars in the Balkans. [15] As another example, the International Military Tribunal for Germany conducted the Nuremberg Trials to bring individual perpetrators of IHL violations after World War II. [16]

Since the post-Cold War era, the use of sanctions as a means to deter violations of IHL has increasingly become a global norm, with many NATO member states having used sanctions to "coerce and constrain a country" as a foreign policy tool. [17] Typically, sanctions are used with the intention of avoiding armed conflict. As of March 7, New Zealand and South Korea have joined Western allies including the United States and the European Union in imposing sanctions to punish Russia. [18] However, since “comprehensive sanctions regimes” often have unintended effects on the general population of a country rather than the political leaders perpetrating undesirable policies, countries may opt to implement “smart sanctions,” such as the asset freezes that Western allies have imposed on Putin and Russian elites, to try to target individual responsible agents more effectively. [19] Additionally, while multilateral sanctions, through which multilateral organizations like the UN uniformly impose sanctions on a target, are preferred, they are not always possible. [20] Such is the case with the 2022 Russian-Ukrainian conflict since Russia is a member of the UN Security Council and thus has veto power. Instead, coalitions may be formed to impose unilateral sanctions, as was the case when the United States, Canada, and Western Europe sanctioned Russia after the annexation of Crimea. [21]

While certainly not limited to this context, the issue of the efficacy and enforceability of IHL reemerges as the Russian-Ukrainian conflict continues to unfold. The European Commission has reported a significant increase in violations of IHL in the past decade. [22] Such violations include the willful killing of and attacks against civilians, sexual violence, and the denial of humanitarian relief. [23] Now is a relevant time as ever to reexamine and promote accountability for the implementation of international humanitarian law so that it can more comprehensively realize its intent to limit the harm to combatants and individuals during global armed conflict.

Edited by Genevieve Cabadas

Sources: 

[1] Irish, John, Robin Emmott, and Jonathan Saul. “NATO Leaves Black Sea Exposed as Russia Invades Ukraine,” Reuters (25 February 2022), https://www.reuters.com/world/europe/nato-leaves-black-sea-exposed-russia-invades-ukraine-2022-02-24/ (accessed 25 February 2022).

[2] “Ukraine Civilian War Casualties 2022,” Statista (17 March 2022), https://www.statista.com/statistics/1293492/ukraine-war-casualties/ (accessed 20 March 2022).

[3] “Operational Data Portal: Ukraine Refugee Situation,” United Nations High Commissioner for Refugees (19 March 2022), https://data2.unhcr.org/en/situations/ukraine (accessed 20 March 2022).

[4] “Ukraine: Council Unanimously Introduces Temporary Protection for Persons Fleeing the War,” Council of the EU Press Release (4 March 2022), https://www.consilium.europa.eu/en/press/press-releases/2022/03/04/ukraine-council-introduces-temporary-protection-for-persons-fleeing-the-war/ (accessed 8 March 2022).

[5] Andrej Kirn and Lisa Ossenbrink, “How the World Is Responding to the Humanitarian Crisis in Ukraine,” World Economic Forum (2 March 2022), https://www.weforum.org/agenda/2022/03/the-humanitarian-impact-of-the-crisis-in-ukraine-will-be-long-lasting/ (accessed 6 March 2022).

[6] “Alarmed by Targeted Attacks on Civilians Fleeing Violence, Massive Humanitarian Crisis in Ukraine, Speakers Briefing Security Council Reiterate Strong Calls to End Conflict,” UN Meetings Coverage and Press Releases (7 March 2022), https://www.un.org/press/en/2022/sc14823.doc.htm (accessed 7 March 2022).

[7]  “International Humanitarian Law,” European Civil Protection and Humanitarian Aid Operations, https://ec.europa.eu/echo/what/humanitarian-aid/international-humanitarian-law_en (accessed 25 February 2022).

[8]  “Summary of the Geneva Conventions of 1949 and Their Additional Protocols,” American Red Cross (April 2011), https://www.redcross.org/content/dam/redcross/atg/PDF_s/International_Services/International_Humanitarian_Law/IHL_SummaryGenevaConv.pdf (accessed 25 February 2022).

[9] Erin Banco and Nahal Toosi, “State Dept. cable: U.S. officials concerned Russia is targeting civilians in Ukraine,” Politico (11 March 2022), https://www.politico.com/news/2022/03/11/ukraine-is-on-the-brink-of-a-humanitarian-catastrophe-00016578 (accessed 14 March 2022).

[10] Marco Sassòli, “State Responsibility for Violations of International Humanitarian Law,” 84 Revue Internationale de La Croix-Rouge/International Review of the Red Cross 401, 401-403 (June 2002), https://doi.org/10.1017/S1560775500097753.

[11] “War Crimes,” United Nations Office on Genocide Prevention and the Responsibility to Protect, https://www.un.org/en/genocideprevention/war-crimes.shtml (accessed 25 February 2022).

[12] “Russian attacks on civilian targets in Ukraine could be a war crime: UN rights office,” UN News (11 March 2022), https://news.un.org/en/story/2022/03/1113782 (accessed 14 March 2022).

[13] “War Crimes.”

[14] “IHL and Human Rights Law,” International Committee of the Red Cross (27 June 2016), https://www.icrc.org/en/document/ihl-human-rights-law (accessed 25 February 2022).

[15] “International Criminal Tribunal for the Former Yugoslavia,” United Nations, https://www.icty.org/ (accessed 7 March 2022).

[16]  “The International Military Tribunal for Germany,” Yale Law School, https://avalon.law.yale.edu/subject_menus/imt.asp (accessed 7 March 2022).

[17] Ian Kenneth Bolton, “Deterrence and the use of Sanctions,” Center for Science and Security Studies, War Studies Department, King’s College London, 4, https://www.sto.nato.int/publications/STO%20Meeting%20Proceedings/STO-MP-SAS-141/MP-SAS-141-10.pdf (accessed 6 March 2022).

[18] “New Zealand, South Korea Announce New Sanctions on Russia,” Al Jazeera (7 March 2022), https://www.aljazeera.com/economy/2022/3/7/new-zealand-south-korea-announce-new-sanctions-on-russia (accessed 8 March 2022).

[19] Ian Kenneth Bolton, “Deterrence and the use of Sanctions,” Center for Science and Security Studies, War Studies Department, King’s College London, 4, https://www.sto.nato.int/publications/STO%20Meeting%20Proceedings/STO-MP-SAS-141/MP-SAS-141-10.pdf (accessed 6 March 2022).

[20] “Ukraine Civilian War Casualties 2022,” Statista (17 March 2022), https://www.statista.com/statistics/1293492/ukraine-war-casualties/ (accessed 20 March 2022).

[21] “Summary of the Geneva Conventions of 1949 and Their Additional Protocols,” American Red Cross (April 2011), https://www.redcross.org/content/dam/redcross/atg/PDF_s/International_Services/International_Humanitarian_Law/IHL_SummaryGenevaConv.pdf (accessed 25 February 2022).

[22] “International Humanitarian Law,” European Civil Protection and Humanitarian Aid Operations, https://ec.europa.eu/echo/what/humanitarian-aid/international-humanitarian-law_en (accessed 25 February 2022).

[23] “Examples of Definitions of Humanitarian Law Violations,” United Nations Human Rights Responsibilities, https://elearning.un.org/CONT/GEN/CS/UNHR_V3/Module_01/story_content/external_files/Examples%20of%20definitions%20of%20humanitarian%20law%20violations.pdf (accessed 25 February 2022).